Trump Is Fighting Section 230 for the Wrong Reason

By Steve Randy Waldman, The Atlantic

04 January 21

Why I changed my mind about Section 230.

n the United States, you are free to speak, but you are not free of responsibility for what you say. If your speech is defamatory, you can be sued. If you are a publisher, you can be sued for the speech you pass along. But online services such as Facebook and Twitter can pass along almost anything, with almost no legal accountability, thanks to a law known as Section 230.

President Donald Trump has been pressuring Congress to repeal the law, which he blames for allowing Twitter to put warning labels on his tweets. But the real problem with Section 230, which I used to strongly support, is the kind of internet it has enabled. The law lets large sites benefit from network effects (I’m on Facebook because my friends are on Facebook) while shifting the costs of scale, like shoddy moderation and homogenized communities, to users and society at large. That’s a bad deal. Congress should revise Section 230—just not for the reasons the president and his supporters have identified.

When the law was enacted in 1996, the possibility that monopolies could emerge on the internet seemed ludicrous. But the facts have changed, and now so must our minds.

In the early 1990s, emerging digital technologies created a quandary. Online public forums, on which users are able to post whatever they’d like, were one of the earliest and most exciting applications of digital networks. But hosting such a forum was arguably akin to a newspaper publishing a Letters to the Editor page without bothering to read the letters, which would be a prescription for legal catastrophe.

In two landmark cases, courts began to grapple with the issue. In 1991, a federal court ruled that the online service CompuServe was a mere distributor, rather than a publisher, of the material that it hosted, and so was not liable for its content. Its competitor Prodigy, however, was deemed to be liable in a New York state court ruling four years later, because Prodigy moderated user forums. By acting as an editor and not a mere conduit, the court reasoned, Prodigy made itself a publisher rather than a distributor.

In 1996, Congress passed the Communications Decency Act, a law meant to crack down on digital smut. From a decency perspective, the legal standard that had emerged from the CompuServe and Prodigy lawsuits seemed, well, perverse. Prodigy was liable because it had tried to do the right thing; CompuServe was immune because it had not. So Section 230 of the act stipulated that providers of internet forums would not be liable for user-posted speech, even if they selectively censored some material.

Much of the Communications Decency Act was quickly struck down by the Supreme Court, but Section 230 survived. It quietly reshaped our world. Courts interpreted the law as giving internet services a so-called safe harbor from liability for almost anything involving user-generated material. The Electronic Frontier Foundation describes Section 230 as “one of the most valuable tools for protecting freedom of expression and innovation on the Internet.” The internet predated the law. Yet the legal scholar Jeff Kosseff describes the core of Section 230 as “the twenty-six words that created the internet,” because without it, the firms that dominate the internet as we have come to know it could not exist. Maybe that would be a good thing.

Services such as Facebook, Twitter, and YouTube are not mere distributors. They make choices that shape what we see. Some posts are circulated widely. Others are suppressed. We are surveilled, and ads are targeted into our feeds. Without Section 230 protections, these firms would be publishers, liable for all the obscenity, defamation, threats, and abuse that the worst of their users might post. They would face a bitter, perhaps existential, dilemma. They are advertising businesses, reliant on reader clicks. A moderation algorithm that erred on the side of a lawyer’s caution would catch too much in its net, leaving posters angrily muzzled and readers with nothing more provocative than cat pics to scroll through. An algorithm that erred the other way would open a floodgate of lawsuits.

But the internet is not Facebook or Twitter, and it shouldn’t be. Fifteen years ago the major social-media platforms barely existed. Was the internet better or worse? The online public square, now dominated by Twitter, was then constituted of independent blogs aggregated by user-curated feeds. Bloggers are publishers, legally responsible for their posts, but the blogosphere was not noted for its blandness. White-hot critique was common, but defamation and abuse were not—except in unmoderated user comments, for which bloggers could disclaim responsibility, thanks to Section 230.

In a democracy, public conversation is a kind of collective cognition. Before the internet, Americans thought together in pamphlets and newspapers. On the early internet, we thought together in blogs and journals. Today we think together on Twitter and Facebook and within the shrinking circle of journalism’s survivors. Which internet did a better job of keeping Americans informed? Which internet was more open, in the sense of permitting unknown voices with valuable insights to gain a hearing?

Forums where people can chat and post would continue to exist without Section 230. We know this because few countries offer internet platforms such sweeping protections but small user forums are everywhere. What distinguishes the United States is that it is home to gigantic, ad-driven sites like Facebook, Twitter, Google, and YouTube.

In practice, the effect of Section 230 has not been to enable experimentation or free expression but to allow leading websites to operate on a massive scale. When you are legally responsible for what happens on your site, you have to moderate the content that appears there. But moderating well is hard. You hope to encourage thoughtful participation of parties who might be hurt by incautious speech but also parties who might feel stifled by overcaution. Moderation becomes harder as the scale and scope of a community grow. Speech that would be great fun in a mixed-martial-arts forum might be disruptive or even harmful in a forum for trauma survivors. Managing a community of both would be challenging. A pluralistic society embraces a wide variety of communities, porous but meaningfully distinct, each with its own culture. In law, the phrase “community standards” signifies a deference to the heterogeneity of norms regarding appropriate expression. In an ironic, even Orwellian, turn, social-media titans have repurposed the phrase to describe their own one-size-fits-all rules, to which every community must now defer or be excluded from the arteries of contemporary civil society.

Without Section 230, the costs and legal jeopardy associated with operating user forums would grow with the size of the forum. Courts apply speech laws with careful sensitivity to context. Most of the time, “I’m gonna kill you!” is not a criminal threat. Occasionally it is. In smaller forums with well-defined norms, it’s easy for both users and moderators to tell the difference. In a nowhere land of everybody, it’s just hard to know. With less context but deep pockets, large forums would have to err on the side of dull caution. Small forums would not.

A more plural internet would be a freer internet, as different communities could have wildly divergent standards about permissible expression. By creating the conditions under which we are all herded into the same virtual space, Section 230 helped turn the internet into a conformity machine. We regulate one another’s speech through shame or abuse, but we have nowhere to go where our own expression might be more tolerable. And while Section 230 immunizes providers from legal liability, it turns those providers into agents of such concentrated influence that they are objects of constant political concern. When the Facebook founder Mark Zuckerberg and the Twitter founder Jack Dorsey are routinely (and justifiably!) browbeaten before Congress, it’s hard to claim that Section 230 has insulated the public sphere from government interference.

Before the internet, we had a communications ecosystem that included network television, metropolitan daily newspapers, niche journals and magazines, and theater and film that audiences chose with their feet to attend. A film might be breathtaking and provocative but not appropriate for prime-time TV. Contemporary social media have swallowed this diversity of forums. Revising Section 230 would be a blow to platforms like Facebook and Twitter. It would force them into the niche that network television once occupied: ubiquitous but consequently bland. A new legal standard should encourage websites to moderate content posted by users (as Section 230 was intended to do), and it should recognize that forums for mixed-martial-arts fans and trauma survivors might apply different norms. But a new standard should not immunize hosts from risk of liability (as Section 230 does) even after notice that material they are hosting is defamatory, threatening, or otherwise unlawful.

In many cases, providers will be correct—and courageous—not to take down material to which some party objects, even under threat of lawsuit. Making affirmative choices about what a broader public ought to see, in spite of controversy, is the very essence of what it means to be a publisher. Online publishers should enjoy the same legal protections as the countless pamphleteers and newspaper editors who came before them, but they should also bear the same responsibility to justify their choices.

Courage requires human judgment, the shirking of which forms the basis of the social-media business model. If made liable for posts flagged as defamatory or unlawful, mass-market platforms including Facebook and Twitter would likely switch to a policy of taking down those posts automatically. Incentives would shift: Mass platforms would have to find a balance among maximizing viewership, encouraging responsible posting, and discouraging users who frivolously flag other people’s posts. They would no longer get a free pass when publishing ads that are false or defamatory. Even these platforms’ highest-profile users could not assume that everything they posted would be amplified to millions of other people.

Vigorous argument and provocative content would migrate to sites where people take responsibility for their own speech, or to forums whose operators devote attention and judgment to the conversations they host. The result would be a higher-quality, less consolidated, and ultimately freer public square.

The Bungled Vaccine Rollout Is a Bad Omen for the Climate Crisis

By Kate Aronoff, The New Republic

04 January 21

America’s disastrous response to Covid-19 is an unsettling preview of how it might respond to the climate change crisis.

illions of usable Covid-19 vaccine doses in the United States could expire by the end of January before being administered. Roughly 10 percent of the available 40 million doses have been dispatched so far. Coronavirus testing and contact-tracing efforts have stumbled over similar bureaucratic dysfunction, with the country falling behind governments with comparatively paltry resources. Even judged against its former self, the U.S. is coming up short. As New York magazine’s David Wallace Wells pointed out last week, New York City vaccinated five million people against smallpox over just two weeks in 1947. Since vaccinations began in the U.S. on December 14, 4.3 million people here have received their first shots.

Covid-19 is one of the simpler problems humanity will have to deal with this century. America’s poor handling of it doesn’t inspire much confidence. Although distributing a vaccine is logistically complicated, it’s nothing compared to the system overhaul required for speedy decarbonization and to adapt to a warmer world. With Trump reluctantly on his way out of the White House, Democrats are now eager to reclaim this country’s mantle as the leader of the free world. Whether that title was ever one to be proud of is its own question. And ever-climbing Covid-19 deaths should now cast doubt on whether it’s even remotely accurate. It’s worth keeping that in mind as policymakers think about how to meet future challenges.

There’s no vaccine for global warming. The energetic basis of society as we know it needs to be simultaneously dismantled and rebuilt. That means building prodigious numbers of wind turbines, solar panels, and transmission lines, and rewiring the grid to both accept and distribute electrons. All the while, fossil fuel profits that have historically furnished state budgets the world over will have to go unrealized. Internal combustion engines will need to become a thing of the past, as will the way most of us currently cool and heat homes and cook dinner. In all likelihood, at least millions of people will have to leave their homes and find new ones in other neighborhoods, regions, or countries—from the wealthy homeowners in California’s combustible hills to the middle- and working-class beachfront communities being swallowed by the sea, to farmers on infertile land. In some places, it’ll just be too hot for humans to live. All of these problems amount to a coordination nightmare orders of magnitude larger than the one posed by Covid-19.

It’s tempting to blame the U.S. failure in dealing with the pandemic on Donald Trump. And the outgoing president does have blood on his hands. But his administration didn’t single-handedly hollow out the parts of the state best suited to handle this crisis. The government that’s failing to contain and inoculate against the novel coronavirus has been decades in the making, as policymakers starved some parts of the state while grotesquely bloating others. Over roughly the same period, when a record amount of greenhouse gases have seeped into the atmosphere, both the military and the prison system have grown in the U.S. as its safety net has been winnowed. Gross domestic product has ballooned too, although wages here have stayed roughly flat since about 1973, amid a record takeoff in corporate profits. The mission to protect those profits is a global one: The U.S. has joined other wealthy nations in blocking a proposal by India and South Africa to suspend intellectual property rights for Covid-19 vaccines. So as it hoards and wastes vaccines, the U.S. is helping cut off their supply to millions in the global south.

The right-wing intellectuals, think tanks, and politicians who spent much of the last century enshrining these core governmental capacities have simultaneously taken a sledgehammer to the idea of a government that can improve and protect working people’s lives—and enlisted both Democrats and Republicans in their cause. “While neoconservatives and neoliberals diverge in their political ideals,” geographer Ruth Wilson Gilmore has written, “they share certain convictions about the narrow legitimacy of the public sector in the conduct of everyday life, despite the U.S. constitutional admonition that the government should ‘promote the general welfare.’ For them, wide-scale protections from calamity and opportunities for advancement should not be a public good centrally organized to benefit everyone who is eligible.” She calls this phenomenon the “antistate state,” driven by “people and parties who gain state power by denouncing state power. Once they have achieved an elected or appointed position in government they have to make what they do seem transparently legitimate, and if budgets are any indication, they spend a lot of money even as they claim they’re ‘shrinking government.’”

The “antistate state” is now dealing with the pandemic and climate crisis. And while its hallmarks aren’t unique to the U.S., it exists here in a particularly advanced form, having been encouraged to fester for the last few decades. On New Year’s Eve, in one recent example, all but five Senate Democrats and Independent Bernie Sanders voted to squash a debate about $2,000 survival checks for the sake of passing a $740 billion defense authorization bill.

Joe Biden ran on the promise of healing the nation and nursing it back to a greatness allegedly achieved sometime between December 2008 and November 2016. Restored to its Obama-era highs, the U.S., he promises, will once again be “at the head of the table,” leading the way for the world in dealing with—among other things—the climate crisis. Given its response to Covid-19, though, it’s not at all clear whether that’s a challenge the U.S. is up to.

That’s not to say the U.S. can’t meet the challenges ahead. We know from past example that quick, massive change is possible. Days after his inauguration in March 1932, Roosevelt pitched a program called the Civilian Conservation Corps to his closest advisers. It was signed into law by the end of the month, and the program accepted its first recruits by April 7. The New Deal proceeded to build a welfare state without so much as a computer. There aren’t many hard and fast barriers around what the U.S. government can and cannot do: With virtually unlimited wealth at its disposal, the ceiling is high. But taking the lead on Covid, climate, or anything else will require fundamentally rethinking what it is the U.S. government does and who it serves.

As the world’s largest economy and its second-largest emitter of greenhouse gases, the U.S. has a critical role to play in averting catastrophic levels of warming. That doesn’t necessarily mean it will or even can take the lead, however much time Biden climate envoy John Kerry might spend hobnobbing with world leaders and fossil fuel executives about it. As with Covid-19, American failure doesn’t need to be the world’s: Other countries and regions are already showing more effective and humane paths forward, both against pandemics and against fossil fuels. It may well be time for the U.S. to follow—with all the humility and adaptability that role implies.